Ecolab Inc 8-K, filed Aug 19, 2021
Ecolab Inc. (ECL)
About this 8-K
Ecolab Inc filed this 8-K on August 19, 2021, reporting on events of August 9, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
The information set forth in Item 8.01 below with respect to the Purchase Agreement (as defined below) is hereby incorporated by reference into this Item 1.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 8.01 below with respect to the Notes and the Indenture (each as defined below) is hereby incorporated by reference into this Item 2.03, insofar as it relates to the creation of a direct financial obligation.
Item 8.01 Other Events.
Purchase Agreement
On August 9, 2021, Ecolab Inc. (the “Company”) entered into a purchase agreement (the “Purchase Agreement”) with J.P. Morgan Securities LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Goldman Sachs & Co. LLC, as Representatives of the several initial purchasers (the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers $300,000,000 aggregate principal amount of its 2.750% Notes due 2055 (the “Notes”). The Purchase Agreement contains customary representations, warranties and covenants made by the Company. It also provides for customary indemnification by each of the Company and the Purchasers against certain liabilities and customary contribution provisions in respect of those liabilities.
On August 18, 2021, the Company completed the offering of the Notes, and the Notes were issued pursuant to an Indenture (the “Base Indenture”), dated January 12, 2015, between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended by the Tenth Supplemental Indenture, dated August 18, 2021 (the “Tenth Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Company and the Trustee. The Notes were issued in a transaction exempt from registration under the Securities Act of 1933, as amended.
The Notes bear interest at a rate of 2.750% per annum, payable semi-annually in arrears on February 18 and August 18 of each year, beginning on February 18, 2022. The Notes will mature on August 18, 2055 and are redeemable at the Company’s option in whole at any time or in part from time to time, at the redemption prices specified in the Indenture.
Upon the occurrence of certain change of control events with respect to the Notes, as described in the Indenture, the Company will be required to offer to repurchase the Notes at a price equal to 101% of the aggregate principal amount thereof, plus any accrued and unpaid interest to, but excluding, the date of repurchase.
The Indenture contains covenants that limit, among other things, the ability of the Company and its subsidiaries to incur liens on certain properties to secure debt, to engage in sale and leaseback transactions and to transfer certain property, stock or debt of any restricted subsidiary to any unrestricted subsidiary (each as defined in the Indenture).
The offering price of the Notes was 98.778% of the principal amount of the Notes. The Company received net proceeds (after deducting underwriting discounts and the Company’s offering expenses) of approximately $293 million and intends to use such net proceeds, together with available cash, to redeem its 2.375% Notes due 2022 and 3.250% Notes due 2023.
The above description of the Purchase Agreement, the Base Indenture, the Tenth Supplemental Indenture and the form of Notes is qualified in its entirety by reference to the Purchase Agreement, the Base Indenture, the Tenth Supplemental Indenture and the Notes, each of which is incorporated herein by reference and are included in this Current Report on Form 8-K as Exhibits 1.1, 4.1, 4.2 and 4.3, respectively.
In the ordinary course of their respective business, the Purchasers or their affiliates have performed from time to time, and may in the future perform, various investment banking, commercial lending, financial advisory and other services for the Company for which they received, or will receive, customary fees and expenses. An affiliate of the Trustee acted as a Purchaser in connection with the issuance of the Notes.
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Registration Rights Agreement
On August 18, 2021, in connection with the issuance of the Notes, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with J.P. Morgan Securities LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, BofA Securities, Inc., Citigroup Global Markets Inc. and MUFG Securities Americas Inc.
Subject to certain limitations set forth in the Registration Rights Agreement, the Company has agreed to (i) file a registration statement (the “Exchange Offer Registration Statement”) with respect to registered offers to exchange the Notes for exchange notes (the “Exchange Notes”), which will have terms identical in all material respects to the Notes, except that the Exchange Notes will not contain transfer restrictions and will not provide for any increase in the interest rate thereon in certain circumstances and (ii) use commercially reasonably efforts to cause the Exchange Offer Registration Statement to be declared effective within 270 days after the date of issuance of the Notes.
The above description of the Registration Rights Agreement is qualified in its entirety by reference to the Registration Rights Agreement, which is incorporated herein by reference and is attached to this Current Report on Form 8-K as Exhibit 4.4.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | | Description | | Method Of Filing | |
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(1.1) | | | Filed herewith electronically. | | |
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(4.1) | | Indenture, dated January 12, 2015, between the Company and Wells Fargo Bank, National Association. | | Incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on January 15, 2015. | |
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(4.2) | | | Filed herewith electronically. | | |
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(4.3) | | | Included in Exhibit 4.2 above. | | |
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(4.4) | | | Filed herewith electronically. | | |
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(104) | | Cover Page Interactive Data File. | | Embedded within the Inline XBRL document. | |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | ECOLAB INC. | ||
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Date: August 19, 2021 | | By: | /s/ David F. Duvick | |
| | | David F. Duvick | |
| | | Assistant Secretary | |
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Exhibit 1.1
$300,000,000
ECOLAB INC.
$300,000,000 2.750% Notes Due 2055
PURCHASE AGREEMENT
| August 9, 2021 |
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
As Representatives of the several
Purchasers named in Schedule I hereto
Ladies and Gentlemen:
The holders of the Offered Securities will be entitled to the benefits of a registration rights agreement dated as of the Closing Date (the “Registration Rights Agreement”), pursuant to which the Company may be required to file with the Commission (as defined below), under the circumstances set forth therein, (i) a registration statement under the Securities Act (as defined below) relating to other series of debt securities of the Company with terms substantially identical to the Offered Securities (the “Exchange Securities”) to be offered in exchange for the Offered
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Securities (the “Registered Exchange Offer”) and (ii) a shelf registration statement pursuant to Rule 415 under the Securities Act relating to the resale by certain holders of the Offered Securities, and in each case, to use commercially reasonable efforts to cause such registration statements to be declared effective. All references herein to the Exchange Securities and the Registered Exchange Offer are only applicable if the Company is in fact required to consummate the Registered Exchange Offer pursuant to the terms of the Registration Rights Agreement.
The Company hereby agrees with the several Purchasers as follows:
For purposes of this Agreement:
“Applicable Time” means 3:20 p.m. (New York time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Final Offering Memorandum” means the final offering memorandum relating to the Offered Securities to be offered by the Purchasers that discloses the offering price and other final terms of the Offered Securities and is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement).
“Free Writing Communication” means a written communication (as such term is defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities and is made by means other than the Preliminary Offering Memorandum or the Final Offering Memorandum.
“General Disclosure Package” means the Preliminary Offering Memorandum together with any Issuer Free Writing Communication existing at the Applicable Time and the information in which is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule II hereto.
“General Solicitation Communication” shall have the meaning set forth in Section 2 herein.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of the Company, used or referred to by the Company or containing a description of the final terms of the Offered Securities or of their offering, in the form retained in the Company’s records.
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“Permitted General Solicitation Communication” shall have the meaning set forth in Section 2 herein.
“Preliminary Offering Memorandum” means the preliminary offering memorandum, dated August 9, 2021, relating to the Offered Securities to be offered by the Purchasers.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any Issuer Free Writing Communication specified in Schedule II hereto. Supplemental Marketing Materials include, but are not limited to, the electronic Bloomberg roadshow slides and the accompanying audio recording.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Securities Act.
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The Company will deliver against payment of the purchase price the Offered Securities to be offered and sold by the Purchasers in reliance on Regulation S (the “Regulation S Securities”) in the form of one or more permanent global Securities in registered form without interest coupons (the “Offered Regulation S Global Securities”) which will be deposited with the Trustee as custodian for The Depository Trust Company (“DTC”) for the respective accounts of the DTC participants for Euroclear Bank SA/NV (“Euroclear”), as operator of the Euroclear System, and Clearstream Banking S.A. (“Clearstream”) and registered in the name of Cede & Co., as nominee for DTC. The Company will deliver against payment of the purchase price the Offered Securities to be purchased by each Purchaser hereunder and to be offered and sold by each Purchaser in reliance on Rule 144A (the “144A Securities”) in the form of one permanent global security in definitive form without interest coupons (the “Restricted Global Securities”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The
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Regulation S Global Securities and the Restricted Global Securities shall be assigned separate CUSIP numbers. The Restricted Global Securities shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the General Disclosure Package and Final Offering Memorandum. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Securities, interests in the Regulation S Global Securities may only be held by the DTC participants for Euroclear and Clearstream. Interests in any permanent global Securities will be held only in book-entry form through Euroclear, Clearstream or DTC, as the case may be, except in the limited circumstances described in the Final Offering Memorandum.
Payment for the Regulation S Securities and the 144A Securities shall be made by the Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives previously designated to the Purchasers by the Company, at 9:00 A.M., (New York time), on August 18, 2021, or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global Securities representing all of the Regulation S Securities for the respective accounts of the DTC participants for Euroclear and Clearstream and (ii) the Restricted Global Securities representing all of the Offered 144A Securities.
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later
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of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
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The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. The Representatives may in their sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers hereunder.
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If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms.
| | Very truly yours, | |||
| | Ecolab Inc. | |||
| | | By: /s/ Catherine Loh | ||
| | | Name: Catherine Loh | ||
The foregoing Purchase Agreement is | ||
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J.P. Morgan Securities LLC | ||
By: | /s/ Som Bhattacharyya | |
| Name: Som Bhattacharyya | |
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Barclays Capital Inc. | ||
By: | /s/ Meghan Maher | |
| Name: Meghan Maher | |
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Credit Suisse Securities (USA) LLC | ||
By: | /s/ Kashif Malik | |
| Name: Kashif Malik | |
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Goldman Sachs & Co. LLC | ||
By: | /s/ Adam T. Greene | |
| Name: Adam T. Greene | |
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For themselves and the other several | ||
SCHEDULE I
| Purchaser | Principal Amount of | |
| J.P. Morgan Securities LLC | $49,500,000 | |
| Barclays Capital Inc. | 49,500,000 | |
| Credit Suisse Securities (USA) LLC | 49,500,000 | |
| Goldman Sachs & Co. LLC | 49,500,000 | |
| BofA Securities, Inc. | 18,000,000 | |
| Citigroup Global Markets Inc. | 18,000,000 | |
| MUFG Securities Americas Inc. | 18,000,000 | |
| Mizuho Securities USA LLC | 12,000,000 | |
| SMBC Nikko Securities America, Inc. | 12,000,000 | |
| U.S. Bancorp Investments, Inc. | 12,000,000 | |
| Wells Fargo Securities, LLC | 12,000,000 | |
| Total | $300,000,000 | |
SCHEDULE II
Issuer Free Writing Communications (included in the General Disclosure Package)
Final term sheet, dated August 9, 2021, a copy of which is attached hereto as Exhibit A.
SCHEDULE III
Permitted General Solicitation Communications
None.
Exhibit A
Ecolab Inc.
$300,000,000 2.750% Notes Due 2055
Final Term Sheet
August 9, 2021
Issuer: | Ecolab Inc. | |
Offered Securities: | 2.750% Notes Due 2055 | |
Type of Offering: | Rule 144A / Regulation S | |
Trade Date: | August 9, 2021 | |
Settlement Date: | August 18, 2021 (T+7) | |
Joint Book-Running Managers: | J.P. Morgan Securities LLC Barclays Capital Inc. Credit Suisse Securities (USA) LLC Goldman Sachs & Co. LLC | |
| BofA Securities Inc. Citigroup Global Markets Inc. MUFG Securities Americas Inc. | |
Co-Managers: | Mizuho Securities USA LLC SMBC Nikko Securities America, Inc. US Bancorp Investments, Inc. Wells Fargo Securities, LLC | |
Principal Amount: | $300,000,000 | |
Maturity Date: | August 18, 2055 | |
Coupon: | 2.750% | |
Interest Payment Dates: | February 18 and August 18, commencing February 18, 2022 | |
Price to Public: | 98.778% | |
Benchmark Treasury: | 1.875% due February 15, 2051 | |
Benchmark Treasury Price and Yield: | 97-24;1.976% | |
Spread to Benchmark Treasury: | +83 bps | |
Yield to Maturity: | 2.806% | |
Make-Whole Call: | T +15 bps | |
Par Call: | On or after February 18, 2055 | |
CUSIP: | Rule 144A: 278865BH2 Reg S: U27803BB7 | |
ISIN: | Rule 144A: US278865BH22 Reg S: USU27803BB76 | |
The Issuer has prepared the Preliminary Offering Memorandum for the offering to which this communication relates. This communication is for information purposes only and does not constitute an offer to sell, or a solicitation of an offer to buy, any security. No offer to buy securities described herein can be accepted, and no part of the purchase price thereof can be received, unless the person making such investment decision has received and reviewed the information contained in the Preliminary Offering Memorandum. Any initial purchaser participating in the offer will arrange to send you the Preliminary Offering Memorandum if you request it by calling Barclays Capital Inc. toll free at (888) 603-5847, Credit Suisse Securities (USA) LLC toll free at (800) 221-1037, Goldman Sachs & Co. LLC toll-free at 1-866-471-2526 or J.P. Morgan Securities LLC collect at (212) 834-4533.
This Final Term Sheet shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of the Offered Securities, in any state or jurisdiction in which such offer, solicitation or sale would be unlawful. The Offered Securities will be offered and sold to “qualified institutional buyers” in the United States in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and to persons who are not “U.S. Persons” in offshore transactions in reliance on Regulation S under the Securities Act. The Offered Securities have not been registered under the Securities Act or any state securities laws, and may not be offered or sold in the United States to, or for the account or benefit of, “U.S. persons” absent registration or an applicable exemption from the registration requirements.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg or another email system.
Exhibit 4.2
ECOLAB INC.
2.750% Notes due 2055
TENTH SUPPLEMENTAL INDENTURE
Dated as of August 18, 2021
to
Indenture dated as of January 12, 2015
WELLS FARGO BANK, NATIONAL ASSOCIATION
Trustee
This TENTH SUPPLEMENTAL INDENTURE (this “Tenth Supplemental Indenture”) dated as of August 18, 2021, is between ECOLAB INC., a Delaware corporation (the “Company”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Trustee”).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of January 12, 2015 (the “Existing Indenture,” and, together with this Tenth Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debt securities to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Tenth Supplemental Indenture to the Existing Indenture in order to issue a new series of debt securities to be designated as the “2.750% Notes due 2055” (the “Notes”), and to set forth the terms that will be applicable thereto and the forms thereof;
WHEREAS, the Notes have been offered and sold pursuant to Rule 144A and Regulation S of the Securities Act of 1933, as amended (the “Securities Act”);
WHEREAS, the Company has duly determined to appoint Wells Fargo Bank, National Association as Trustee, Registrar and Paying Agent under the Indenture with respect to the Notes and Wells Fargo Bank, National Association is willing to accept such appointment with respect to the Notes;
WHEREAS, Sections 2.01, 3.01 and 13.01 and of the Existing Indenture provide, among other things, that the Company and the Trustee may, without the consent of Holders, enter into indentures supplemental to the Existing Indenture to provide for specific terms applicable to any series of Securities and to add to the covenants of the Company for the benefit of the Holders of each series of Securities (and if such covenants are to be for the benefit of less than all series of notes, stating that such covenants are expressly being included solely for the benefit of such series); and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions set forth hereinafter and in the Indenture against payment therefor, the valid, binding and legal obligations of the Company and to make this Tenth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
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APPLICATION OF TENTH SUPPLEMENTAL INDENTURE
AND CREATION OF NOTES
Notwithstanding any other provision of this Tenth Supplemental Indenture, pursuant to Section 13.01 of the Existing Indenture, the provisions of this Tenth Supplemental Indenture, including the covenants set forth herein, are expressly being included solely for the benefit of the Holders of the Notes. The Notes constitute a series of Securities as provided in Section 3.01 of the Existing Indenture and as provided in Section 1.02 hereof.
There hereby is established a series of Securities designated as the “2.750% Notes due 2055.” The Notes shall be unsecured and unsubordinated obligations of the Company. The initial maximum aggregate principal amount of Notes that may be authenticated and delivered under this Tenth Supplemental Indenture shall not exceed $800,000,000 aggregate principal amount, of which $300,000,000 aggregate principal amount of Notes will be issued on the date hereof and of which up to $500,000,000 aggregate principal amount of Notes may be issued in exchange for the Company’s 4.800% Notes due 2030, 5.500% Notes due 2041, 3.700% Notes due 2046 and 3.950% Notes due 2047, in each case, except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, Notes pursuant to Sections 3.04, 3.06, 3.07 and 4.06 of the Existing Indenture. The Trustee shall authenticate and deliver the Notes upon receipt of an authentication order in accordance with Section 3.03 of the Existing Indenture specifying the date on which such Notes are to be authenticated, the amount of Notes to be authenticated on such date and the aggregate principal amount of Notes outstanding after giving effect to such authentication. Notwithstanding the foregoing, the Company may from time to time, without giving notice to or seeking the consent of the Holders of the Notes, issue debt securities having the same terms (except for the issue date, and, in some cases, the public offering price and the first Interest Payment Date) and ranking equally and ratably with the Notes (“Additional Notes”). All of the Notes issued under this Tenth Supplemental Indenture, including any Exchange Notes of such series issued in the Exchange Offer and any Additional Notes of such series, shall together constitute one series for purposes of the Existing Indenture and this Tenth Supplemental Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase.
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(ii)Restricted Global Notes. The Notes are initially being offered and sold only (A) to Qualified Institutional Buyers in reliance on Rule 144A or (B) outside the United States, to persons other than “U.S. persons” as defined in Rule 902 under the Securities Act in offshore transactions in compliance with Regulation S. The Notes shall be available initially only in book-entry form. The Notes will be issued in the form of one or more Restricted Global Notes. The Restricted Global Notes shall be deposited with, or on behalf of, DTC and registered in its name or in the name of Cede & Co., its nominee. Beneficial interests in the Restricted Global Notes will be shown on, and transfers of beneficial interests in the Restricted Global Notes will be effected through, records maintained by DTC and its participants. Notes initially offered and sold to QIBs in reliance on Rule 144A shall be issued in book-entry form and initially will be represented by one or more Rule 144A Global Notes, and Notes initially offered and sold outside the United States pursuant to Regulation S shall be issued in book-entry form and initially will be represented by one or more Regulation S Global Notes. Clearstream Banking, S.A. (“Clearstream”) and Euroclear Bank SA/NV (“Euroclear”) may hold beneficial interests in the Regulation S Global Notes on behalf of their participants through their respective depositories. Beneficial interests in a Regulation S Global Note may also be held through organizations other than Clearstream and Euroclear that are participants in DTC. The aggregate principal amount of each Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian as hereinafter provided, subject in each case to compliance with the Applicable Procedures.
(iii)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S will be issued in book-entry form and initially will be represented by one or more Regulation S Temporary Global Notes. Notes represented by the Temporary Regulation S Global Notes will be registered in the name of Cede & Co., as registered owner and as nominee for DTC, for credit to the respective accounts of Euroclear and Clearstream. Reasonably promptly after the end of the Restricted Period, which such date shall be notified to the Trustee in writing by the Company, upon receipt by the Trustee and the Company of a duly executed certificate certifying that the holder of the beneficial interest in the Regulation S Temporary Global Note is a Non-U.S. Person, substantially in the form of Exhibit E, from the Depository, beneficial interests in the Notes represented by the Regulation S Temporary Global Notes will be exchangeable for beneficial interests in Notes represented by one or more Permanent Regulation S Global Notes and one or more Permanent Regulation S Global Notes, substantially in the form of Exhibit A, duly executed by the Company and authenticated by the Trustee as hereinafter provided, shall be deposited with the Trustee, as custodian for the Depository, and the Registrar shall reflect on its books and records the cancellation of the Regulation S Temporary Global Note and the issuance of the Permanent Regulation S Global Note. The Notes represented by the Permanent Regulation S Global Notes will be registered in the name of Cede & Co., as registered owner and as nominee for DTC. The aggregate principal amount of the Temporary Regulation S Global Note and the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interests therein as hereinafter provided.
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The Notes are not subject to any sinking fund.
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The defeasance and covenant defeasance provisions of Article XI of the Existing Indenture will apply to the Notes.
The Company will not pay any additional amounts on the Notes held by Non-U.S. Persons in respect of any tax, assessment or governmental change withheld or deducted.
DEFINITIONS
“indenture trustee” or “institutional trustee” shall mean the Trustee.
“indenture securities” means the Notes.
“indenture security holder” means a Holder of the Notes.
“indenture to be qualified” means the Existing Indenture as supplemented by this Tenth Supplemental Indenture.
“Additional Interest” means all additional interest then owing pursuant to Section 6 of the Registration Rights Agreement. Unless the context indicates otherwise, all references to “interest” in this Tenth Supplemental Indenture or the Notes shall be deemed to include any Additional Interest to the extent then applicable.
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, as of any particular time, the present value (discounted at the rate of interest implicit in the terms of the lease involved in the Sale and Leaseback Transaction, as determined in good faith by the Company) of the obligation of the lessee thereunder for net rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, services, insurance, taxes, assessments, water rates and similar charges or any amounts required to be paid by such lessee thereunder contingent upon monetary inflation or the amount of sales, maintenance and repairs, insurance,
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taxes, assessments, water rates or similar charges) during the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended).
“Below Investment Grade Rating Event” means the rating on the Notes is lowered by each of the Rating Agencies and the Notes are rated below Investment Grade by each of the Rating Agencies on any day within the 60-day period (which 60-day period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control and (2) public notice of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control; provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
“Change of Control” means the occurrence of any of the following:
(1)the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and those of its Subsidiaries, taken as a whole, to any person, other than the Company or one of its Subsidiaries;
(2)the first day on which a majority of the members of the Board of Directors are not Continuing Directors; or
(3)the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person, other than the Company or one or more of its Wholly-Owned Subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect Wholly-Owned Subsidiary of a holding company and (2) (A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
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The term “person,” as used in this definition, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“Comparable Treasury Issue” means the U.S. Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term (as measured from the Redemption Date) of the Notes to be redeemed calculated as if the maturity date of the Notes were the Par Call Date (the “Remaining Life”) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life of such Notes.
“Comparable Treasury Price” means, with respect to any Redemption Date, (i) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one Reference Treasury Dealer Quotation is received, such quotation.
“Consolidated Net Tangible Assets” means the aggregate amount of assets (less applicable reserves and other properly deductible items) of the Company and its Restricted Subsidiaries after deducting therefrom (a) all goodwill, tradenames, trademarks, patents, unamortized debt discount and expense and other like intangibles and (b) all current liabilities (excluding any current liabilities for money borrowed having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower), all as reflected in the Company’s latest audited consolidated balance sheet contained in the Company’s most recent annual report to its stockholders prior to the time as of which “Consolidated Net Tangible Assets” shall be determined.
“Continuing Director” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on August 18, 2021; or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).
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“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee with respect to the Tenth Supplemental Indenture is, at any particular time, principally administered, which office is, as of the date on which this Tenth Supplemental Indenture is dated, located in Minneapolis, Minnesota.
c/oWells Fargo Bank, National Association
CTO Mail Operations
MAC N9300-070
600 South 4th Street, 7th Floor
Minneapolis, Minnesota 55415
Attention: Ecolab Administrator
“Exchange Notes” means, with respect the Notes, any securities of the Company containing terms identical in all material respects to such Notes, except that the Exchange Notes will not bear the Private Placement Legend or the Regulation S Temporary Global Note Legend, and will be issued and exchanged for the Notes pursuant to the Registration Rights Agreement, the Existing Indenture and this Tenth Supplemental Indenture.
“Exchange Offer” means an offer that may be made by the Company pursuant to the Registration Rights Agreement to exchange Initial Notes for the Exchange Notes.
“Initial Notes” means the Notes (i) issued on the date hereof and (ii) that may be issued in exchange for the Company’s 4.800% Notes due 2030, 5.500% Notes due 2041, 3.700% Notes due 2046 and 3.950% Notes due 2047, in all cases that contain the Private Placement Legend or the Regulation S Temporary Global Note Legend.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Operating Property” means any manufacturing or processing plant, warehouse or distribution center, together with the land upon which it is situated located within the United States or in Canada and owned and operated as of the date of this Tenth Supplemental Indenture or thereafter by the Company or any Restricted Subsidiary and having a net book value on the date as of which the determination is being made of more than 1.0% of Consolidated Net Tangible Assets other than property which, in the opinion of the Board of Directors of the Company, is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries taken as a whole.
“Private Placement Legend” means the legends set forth in Section 6.02.
“Qualified Institutional Buyer” or “QIB” shall have the meaning set forth in Rule 144A.
“Quotation Agent” means any Reference Treasury Dealer appointed by the Company.
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“Rating Agency” means (1) each of Moody’s and S&P; and (2) if either Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moody’s or S&P, or both, as the case may be.
“Reference Treasury Dealer” means each of J.P. Morgan Securities LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Goldman Sachs & Co. LLC (or their respective affiliates that are Primary Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Registration Rights Agreement” means that certain registration rights agreement, dated as of August 18, 2021, by and among the Company and J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, Barclays Capital Inc., BofA Securities, Inc., Citigroup Global Markets Inc. and MUFG Securities Americas Inc.
“Regulation S” means Regulation S promulgated under the Securities Act and any successor regulation thereto.
“Regulation S Global Note” means the Global Security representing the Notes sold outside the United States in reliance on Regulation S issued in exchange for the Temporary Regulation S Global Note after the expiration of the Restricted Period.
“Regulation S Temporary Global Note Legend” means the legend set forth in Section 6.03.
“Restricted Global Note” means a Global Security, which shall bear a Private Placement Legend and, if applicable, a Regulation S Temporary Global Note Legend.
“Restricted Notes” means any Note that is (a) a “restricted security” as defined in Rule 144(a)(3) under the Securities Act or any successor provision thereto or (b) a Note that by its terms can only be sold pursuant to Regulation S, Rule 144 or Rule 144A (or successor provisions thereto) or (c) in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4 of the Securities Act, including Regulation S and Rule 144A; provided, however, that unless a Note by its terms can only be sold pursuant to Regulation S or Rule 144A, once the Note is sold pursuant to the provisions of Rule 144, including Rule 144(k) under the Securities Act, it will cease to be a Restricted Note. Restricted Notes are required to bear the Private Placement Legend.
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“Restricted Period” means the 40-day “distribution compliance period” as defined in Regulation S.
“Restricted Subsidiaries” means all Subsidiaries other than Unrestricted Subsidiaries.
“Rule 144A” means Rule 144A, as may be amended from time to time, promulgated under the Securities Act.
“Rule 144A Global Note” means, with respect to the Notes, the Global Security substantially in the form of Exhibit A, bearing the applicable Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, which shall be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“S&P” means S&P Global Ratings and its successors.
“Temporary Regulation S Global Note” means, with respect to the Notes, the Global Security substantially in the form of Exhibit A, bearing the Regulation S Temporary Global Note Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, which shall be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Regulation S.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
“Unrestricted Subsidiaries” means (1) any Subsidiary substantially all of whose physical properties are located, or substantially all of whose business is carried on, outside the United States and Canada, (2) any finance Subsidiary and (3) any Subsidiary of an Unrestricted Subsidiary. In addition, the Board of Directors may designate any other Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any capital stock of, or owns or holds any mortgage on any Operating Property of, the Company or any Restricted Subsidiary of the Company; provided that the Subsidiary to be so designated has total assets at the time of such designation of $5 million or less.
“Voting Stock” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
“Wholly-Owned Subsidiary” of any specified Person means a Subsidiary all of whose Voting Stock is owned by the Company or a Wholly-Owned Subsidiary, the accounts of which are consolidated with those of the Company in its consolidated financial statements.
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| Term | Defined in Section | |
| | | |
| “Additional Notes” | 1.02 | |
| “Change of Control Offer” | 4.01(b) | |
| “Change of Control Payment” | 4.01(a) | |
| “Change of Control Payment Date” | 4.01(b)(ii) | |
| “Clearstream” | 1.03(b)(ii) | |
| “Debt” | 5.01 | |
| “DTC” | 1.03(a) | |
| “Euroclear” | 1.03(b)(ii) | |
| “mortgage” | 5.01 | |
| “Par Call Date” | ARTICLE III | |
| “Primary Treasury Dealer” | 2.01 | |
| “Remaining Life” | 2.01 | |
| “Securities Custodian” | 1.03(b)(ii) | |
OPTIONAL REDEMPTION
The Company may redeem the Notes prior to February 18, 2055 (the “Par Call Date”), at any time in whole or from time to time in part, at the Company’s option, at a Redemption Price equal to the greater of:
(i) | 100% of the principal amount of the Notes to be redeemed on the Redemption Date; and |
(ii) | as determined by the Quotation Agent, the sum of the present values of the principal amount of the Notes to be redeemed and remaining scheduled payments of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to the Par Call Date, in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points; |
plus, in each case, accrued and unpaid interest, if any, to but excluding the Redemption Date.
In addition, the Company may redeem the Notes on or after the Par Call Date, at any time in whole or from time to time in part, at the Company’s option, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to but excluding the Redemption Date.
Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on
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the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date according to the Notes and the Indenture.
Notice of any redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each registered Holder of the Notes to be redeemed by the Company or by the Trustee on its behalf; provided that notice of redemption may be delivered more than 60 days prior to the Redemption Date if the notice is issued in connection with a defeasance of such Notes or a satisfaction and discharge of such Notes. The Company shall notify the Trustee of the Redemption Date and of the principal amount of the Notes to be redeemed at least 45 days prior to the Redemption Date, unless a shorter period is satisfactory to the Trustee.
If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by lot by the Trustee, subject to Applicable Procedures of DTC, in the case of Notes represented by a Global Security, or by the Trustee by a method the Trustee deems to be appropriate, in the case of Notes that are not represented by a Global Security.
Except as otherwise set forth in this Article III, the terms and conditions upon which and the manner in which the Notes may be redeemed by the Company pursuant to this Article III are governed by the provisions of Article IV of the Existing Indenture.
CHANGE OF CONTROL
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The Paying Agent will promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of such Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
COVENANTS
The covenants set forth in this Article V shall be applicable to the Company in addition to the covenants in Article VI of the Existing Indenture, which shall in all respects be applicable in respect of the Notes; provided that the covenant contained in Section 6.04 of the Existing Indenture shall not be applicable to the Notes.
The Company will not, and will not permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness for money borrowed (herein referred to as “Debt”) if such Debt is secured by any mortgage, security interest, pledge, lien or other encumbrance (herein referred to as a “mortgage”) upon any Operating Property of the Company or any Restricted Subsidiary or any shares of stock or Debt of any Restricted Subsidiary, whether owned at the date of the issuance of the Notes or thereafter acquired, without effectively securing the Notes equally and ratably with such Debt for at least the period such other Debt is so secured unless, after giving effect thereto, the aggregate amount of all Debt so secured (not including Debt permitted in clauses (1) through (7) in the following sentence), together with all Attributable Debt in respect of Sale and Leaseback Transactions involving Operating Properties pursuant to clause (2) of Section 5.02 hereof in existence at such time would not exceed 15% of Consolidated Net Tangible Assets.
The foregoing restriction does not apply to, and therefore shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured by:
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Sale and Leaseback Transactions by the Company or any Restricted Subsidiary with a third party of any Operating Property are prohibited (except for temporary leases for a term, including renewals, of not more than 60 months and except for leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries) unless the net proceeds of such Sale and Leaseback Transactions are at least equal to the fair market value (as determined in good faith by the Board of Directors) of the Operating Property to be leased and:
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provided that the amount to be so applied pursuant to this clause (3) will be reduced by the principal amount of Notes delivered within 180 days after such sale or transfer to the Trustee for retirement and cancellation.
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Transfer Restrictions, LEGENDs
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Interest on each Exchange Note will accrue (1) from the later of (x) the last date on which interest was paid on the Global Securities that are Restricted Notes surrendered in exchange therefor or (y) if the Global Securities that are Restricted Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (2) if no interest has been paid on the Global Securities that are Restricted Notes, from the date of issuance.
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“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO ECOLAB INC. (THE ‘‘ISSUER’’) OR ANY OF ITS SUBSIDIARIES, (II) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (‘‘RULE 144A’’), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (III) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTION THAT IS AN ‘‘ACCREDITED INVESTOR’’ AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ONLY WITH THE CONSENT OF THE ISSUER.
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BY ITS ACQUISITION OF THIS SECURITY (OR ANY INTEREST HEREIN) THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) THAT IS SUBJECT TO TITLE I OF ERISA, (B) A “PLAN” AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) AN ENTITY WHOSE ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY OF THE FOREGOING OR (D) “GOVERNMENTAL PLANS” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLANS” (AS DEFINED IN SECTION 3(33) OF ERISA) OR NON-U.S. PLANS SUBJECT TO ANY APPLICABLE LAWS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR GIVE RISE TO A NON EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.”
‘‘THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO ECOLAB INC. (THE ‘‘ISSUER’’) OR ANY OF ITS SUBSIDIARIES, (II) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (‘‘RULE 144A’’), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (III) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTION THAT IS AN ‘‘ACCREDITED INVESTOR’’ AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
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SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY (OR ANY INTEREST HEREIN) THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) THAT IS THAT IS SUBJECT TO TITLE I OF ERISA, (B) A “PLAN” AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) AN ENTITY WHOSE ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY OF THE FOREGOING OR (D) “GOVERNMENTAL PLANS” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLANS” (AS DEFINED IN SECTION 3(33) OF ERISA) OR NON-U.S. PLANS SUBJECT TO ANY APPLICABLE LAWS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR GIVE RISE TO A NON EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.”
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE. THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE
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903 OF REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S. PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT.”
(a)So long as any Initial Notes remain outstanding and the Company is neither subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will furnish to any Holder of Notes and any prospective purchaser designated by a Holder, upon request of the Holder, the information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision thereto) under the Securities Act, unless at that time (a) the SEC shall have waived such requirement in writing or otherwise taken the position that subsection 144A(d)(4)(i) does not apply to the Company or (b) the provision of such information shall no longer be required by law to effect resales under Rule 144A under the Securities Act or otherwise to effect resales without registration under the Securities Act.
(b)The transferor of any Note shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
MISCELLANEOUS
If any provision of this Tenth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Tenth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Any notice or communication shall be in writing and delivered in person or mailed by first-class mail or sent by facsimile (with a hard copy delivered in person or by mail promptly thereafter) and addressed as follows:
if to the Company:
Ecolab Inc.
1 Ecolab Place
St. Paul, Minnesota 55102
Attention: General Counsel
Facsimile: (651) 250-2573
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if to the Trustee:
Wells Fargo Bank, National Association
CTSO Mail Operations
MAC N9300-070
600 South 4th Street, 7th Floor
Minneapolis, MN 55415
Attention: Ecolab Administrator
Email: david.pickett@wellsfargo.com
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Notwithstanding any other provision of this Tenth Supplemental Indenture, the Existing Indenture or any Note, where this Tenth Supplemental Indenture, the Existing Indenture or any Note provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee, including by electronic mail in accordance with accepted practices at DTC.
THIS TENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The parties may sign any number of copies of this Tenth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Tenth Supplemental Indenture.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to the Indenture or any document to be signed in connection with this Tenth Supplemental Indenture shall be deemed to include electronic signatures (including, without limitation, any .pdf file, .jpeg file or any other electronic or image file, or any other “electronic signature” as defined under Signature Law, including Orbit, Adobe Fill & Sign, Adobe Sign, DocuSign, or any other similar platform identified by the Company and reasonably available at no undue burden or expense to the Trustee), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
This Tenth Supplemental Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or
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(iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Tenth Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
The headings of Articles and Sections of this Tenth Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Tenth Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the Company’s use of the proceeds from the Notes or for monies paid over to the Company pursuant to this Tenth Supplemental Indenture. All of the provisions contained in the Existing Indenture in respect of the rights, privileges, and immunities of the Trustee, including but not limited to its rights to be compensated, reimbursed and indemnified, shall be applicable to the Trustee in respect of this Tenth Supplemental Indenture as fully and with like force and effect as though set forth in full herein.
The Existing Indenture, as supplemented and amended by this Tenth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
[Signature Page Follows]
25
IN WITNESS WHEREOF, the parties have caused this Tenth Supplemental Indenture to be duly executed as of the date first written above.
| ECOLAB INC. | |
| By: | /s/ Catherine Loh |
| | Name: Catherine Loh |
| | Title: Assistant Treasurer |
| | |
| | |
| WELLS FARGO BANK, NATIONAL | |
| ASSOCIATION, as Trustee | |
| By: | /s/ Corey J. Dahlstrand |
| | Name: Corey J. Dahlstrand |
| | Title: Corporate Trust Officer |
Signature Page to Tenth Supplemental Indenture
EXHIBIT A
[Form of Face of Note]
[Add applicable Private Placement Legend.]
[Add Regulation S Temporary Global Note Legend, if applicable.]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP1
ISIN
ECOLAB INC.
2.750% NOTE DUE 2055
$[__]No.: [144A-1][Reg. S-1]
ECOLAB INC., a Delaware corporation (herein called the “Company”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[__] ([__] MILLION DOLLARS) or such other principal amount as shall be set forth on Schedule I hereto on August 18, 2055 and to pay interest thereon at the rate of 2.750% per annum from August 18, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and to pay the Additional Interest, if any, as defined in and payable pursuant to the Registration Rights Agreement, on February 18 and August 18 of each year, beginning on February 18, 2022 (each an “Interest Payment Date”), until the principal hereof is paid or made available for payment.
| | |
1 Rule 144A Notes: 278865 BH2/ US278865BH22 Temporary Regulation S Note will convert to the Permanent Regulation S Note automatically after the Restricted Period ends, subject to the requirements set forth in the Indenture. | ||
The interest that is payable and is punctually paid or duly provided for on any Interest Payment Date will, except as provided in the Indenture hereinafter referred to, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest, which will be the February 3 and August 3, as the case may be, immediately preceding each Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on the relevant Record Date and either may be paid to the Persons in whose name this Note (or one or more predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders not less than ten calendar days prior to such Special Record Date, or may be paid in any other lawful manner, all as more fully provided in the Indenture. Payment of the principal of, and premium, if any, and interest on this Note will be made at the office or agency of the Company maintained for that purpose, or in such other office or agency as may be established by the Company pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota (the “Corporate Trust Office”), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company through the Paying Agent (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register. In the event that notes in definitive form shall have been issued, payments of principal, premium, if any, and interest at maturity will be made against presentation of this Note at the Corporate Trust Office (or such other office as may be established pursuant to the Indenture), by check or wire transfer.
Reference is hereby made to the further provisions of this Note set forth on the reverse side hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee or an Authenticating Agent under the Indenture referred to on the reverse hereof by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed and attested.
Date:
| | ECOLAB INC. | |
| | By: | |
| | | Name: |
| | | Title: |
ATTEST: | | | |
Assistant Secretary | | | |
| -i- | |
Trustee’s Certificate of Authentication
This is one of the Notes described in the Indenture.
Dated:
| WELLS FARGO BANK, NATIONAL | |
| ASSOCIATION, as Trustee | |
| By: | |
| | Authorized Signatory |
| -ii- | |
[Form of Reverse of Note]
ECOLAB INC.
2.750% NOTE DUE 2055
1.This Note is one of a duly authorized issue of Securities of the Company designated as its 2.750% Notes due 2055 (the “Notes”) issued under an Indenture dated as of January 12, 2015 (herein called, together with the Tenth Supplemental Indenture referred to below, the “Indenture”), between the Company and Wells Fargo Bank National Association, as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Notes, and the terms upon which the Notes are, and are to be, authenticated and delivered.
2.This Note is one of the Securities of the series designated on the face hereof, limited to an aggregate principal amount not to exceed $800,000,000, which amount may be increased at the option of the Company if in the future it determines that it may wish to sell additional Notes of this series, as specified in the Tenth Supplemental Indenture between the Company and Trustee, dated as of August 18, 2021, establishing the form and certain terms of the Notes pursuant to the Indenture (the “Tenth Supplemental Indenture”). References herein to “this series” mean the series of Notes designated on the face hereof.
3.The Company may redeem this Note prior to February 18, 2055 (the “Par Call Date”), at any time in whole or from time to time in part, at the Company’s option, at a Redemption Price equal to the greater of:
(i)100% of the principal amount of the Note to be redeemed on the Redemption Date; and
(ii)as determined by the Quotation Agent, the sum of the present value of the principal amount of the Note to be redeemed and remaining scheduled payments of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to the Par Call Date, in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points;
plus, in each case, accrued and unpaid interest, if any, to but excluding the Redemption Date.
In addition, the Company may redeem this Note on or after the Par Call Date, at any time in whole or from time to time in part, at the Company’s option, at a Redemption Price equal to 100% of the principal amount of the Note to be redeemed, plus accrued and unpaid interest, if any, to but excluding the Redemption Date.
Notwithstanding the foregoing, installments of interest on the Note that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holder as of the close of business on the relevant Record Date according to this Note and the Indenture.
| -iii- | |
Any notice to the Holder of this Note of a redemption pursuant to this paragraph 3 hereof will include the appropriate calculation of the Redemption Price, but does not need to include the Redemption Price itself. The actual Redemption Price, calculated as described above, will be set forth in a Company Order delivered to the Trustee no later than two Business Days prior to the Redemption Date.
4.Upon the occurrence of a Change of Control Repurchase Event, unless all of the Notes have been called for redemption pursuant to paragraph 3 of this Note, the Holder of this Note shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase. “Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event, as such terms are defined in the Indenture. The Change of Control Offer will be made in accordance with the terms specified in the Indenture.
5.If an Event of Default with respect to the Notes (other than certain events of bankruptcy, insolvency or reorganization) shall occur and be continuing, the Trustee or the Holders of 25% or more in principal amount of the Outstanding Notes may declare the principal of and accrued but unpaid interest on this Note to be due and payable in the manner and with the effect provided in the Indenture. The Indenture provides that such declaration and its consequences may, in certain events, be annulled by the Holders of a majority in principal amount of the Outstanding Notes. If an Event of Default with respect to the Notes relating to certain events of bankruptcy, insolvency or reorganization shall occur and be continuing, the principal of and all accrued but unpaid interest on this Note shall automatically, and without any declaration or any other action on the part of the Trustee or any Holder, become due and payable as provided in the Indenture.
6.The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated as of August 18, 2021, among the Company and J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, Barclays Capital Inc., BofA Securities, Inc., Citigroup Global Markets Inc. and MUFG Securities Americas Inc.2
7.The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
| | |
2 To be included only in the Initial Notes on the Issue Date and any Additional Notes that bear the Restricted Note Legend. | ||
| -iv- | |
8.No reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the times, places and rate, and in the coin or currency, herein prescribed.
9.As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Register of the Company, upon surrender of this Note for registration of transfer at the office or agency to be maintained by the Company for that purpose, or at such other office or agency as may be established by the Company for such purpose pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota), duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, and duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for like aggregate principal amount, will be issued to the designated transferee or transferees.
10.The Notes are issuable only in fully registered form, without coupons, in denominations of $2,000 or any amount in excess thereof that is an integral multiple of $1,000. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes in authorized denominations, as requested by the Holder surrendering the same.
11.No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
12.Prior to the due presentment of this Note for registration of transfer or exchange, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee, nor any such agent shall be affected by notice to the contrary.
13.Interest on this Note shall be computed on the basis of a 360-day year of twelve 30- day months. Interest shall be payable to and excluding any Interest Payment Date.
14.The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
15.This Note shall not be valid until authenticated by the manual signature of the Trustee or an Authenticating Agent.
16.Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUT (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
| -v- | |
17.Each Holder of this Note covenants and agrees by such Holder’s acceptance thereof to comply with and be bound by the foregoing provisions.
18.All terms used in this Note which are defined in the Indenture and not otherwise defined in this Note shall have the meanings assigned to them in the Indenture.
| -vi- | |
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
| |
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
| |
| |
| |
the within Security and all rights thereunder, hereby irrevocably constituting and appointing ____________________________ attorney to transfer said Security on the books of the Company, with full power of substitution in the premises.
Dated: | | |
| | |
Signature: | | |
NOTICE: | THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. |
Signature Guarantee:
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
| -vii- | |
Schedule I
SCHEDULE OF TRANSFERS AND EXCHANGES
The following increases or decreases in Principal Amount of this Global Security have been made:
Date of | Amount of Decrease in | Amount of Increase | Principal Amount of this | Signature of |
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| -viii- | |
EXHIBIT B
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
NOTE TO TEMPORARY REGULATION S GLOBAL NOTE
Wells Fargo Bank, N.A. – DAPS REORG
Corporate Trust Operations
MAC N9300-070
600 South Fourth Street – 7th Floor
Minneapolis, MN 55415
Phone: (800) 344-5128
Fax: (866) 969-1290
Email: dapsreorg@wellsfargo.com
Re:ECOLAB INC.
$[]
Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “Trustee”), and Ecolab Inc. (the “Company”), as supplemented by that certain Tenth Supplemental Indenture, dated as of August 18, 2021, by and between the Trustee and the Company (as so supplemented, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This letter relates to $_____________ principal amount of Notes represented by a beneficial interest in the Rule 144A Global Note (CUSIP No. [_]) held with the Depositary by or on behalf of [transferor] as beneficial owner (the “Transferor”). The Transferor has requested an exchange or transfer of its beneficial interest for an interest in the Temporary Regulation S Global Note (CUSIP (CINS) No. [_]) to be held with [Euroclear] [Clearstream] (ISIN Code ___) (Common Code ___) through the Depositary.
In connection with such request and in respect of such Notes, the Transferor does hereby certify that such exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Notes and pursuant to and in accordance with Regulation S under the Securities Act, and accordingly the Transferor does hereby certify that:
(1) | the offer of the Notes was not made to a person in the United States; |
(2)(A)at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or
B-1
(B) | the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; |
(3) | no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; |
(4) | the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and |
(5) | upon completion of the transaction, the beneficial interest being transferred as described above was held with the Depositary through Euroclear or Clearstream or both (ISIN Code ___) (Common Code ___). |
B-2
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers.
| [Insert Name of Transferor] | |
| | |
| By: | |
| | Name: |
| | Title: |
Dated: ______________, ____
B-3
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OR EXCHANGE FROM RULE 144A GLOBAL NOTE
TO REGULATION S GLOBAL NOTE
Wells Fargo Bank, N.A. – DAPS REORG
Corporate Trust Operations
MAC N9300-070
600 South Fourth Street – 7th Floor
Minneapolis, MN 55415
Phone: (800) 344-5128
Fax: (866) 969-1290
Email: dapsreorg@wellsfargo.com
Re:ECOLAB INC.
$[]
Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “Trustee”), and Ecolab Inc. (the “Company”), as supplemented by that certain Tenth Supplemental Indenture, dated as of August 18, 2021, by and between the Trustee and the Company (as so supplemented, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This letter relates to $____________ principal amount of Notes represented by a beneficial interest in the Rule 144A Global Note (CUSIP No. [_]) held with the Depositary by or on behalf of transferor as beneficial owner (the “Transferor”). The Transferor has requested an exchange or transfer of its interest for an interest in the Regulation S Global Note (CUSIP No. [________]).
In connection with such request and in respect of such Notes, the Transferor does hereby certify that such exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Notes and that, with respect to transfers made in reliance on Regulation S under the Securities Act:
(1) | the offer of the Notes was not made to a person in the United States; |
(2)(A)at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or
(B) | the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States; |
(3) | no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and |
(4) | the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
C-1
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers.
| [Insert Name of Transferor] | |
| | |
| By: | |
| | Name: |
| | Title: |
Dated: ______________ __, ____
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR
EXCHANGE FROM TEMPORARY REGULATION S GLOBAL NOTE
TO RULE 144A GLOBAL NOTE
Wells Fargo Bank, N.A. – DAPS REORG
Corporate Trust Operations
MAC N9300-070
600 South Fourth Street – 7th Floor
Minneapolis, MN 55415
Phone: (800) 344-5128
Fax: (866) 969-1290
Email: dapsreorg@wellsfargo.com
Re:ECOLAB INC.
$[]
Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “Trustee”), and Ecolab Inc. (the “Company”), as supplemented by that certain Tenth Supplemental Indenture, dated as of August 18, 2021, by and between the Trustee and the Company (as so supplemented, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This letter relates to $______________ principal amount of Notes which are held in the form of the Temporary Regulation S Global Note (CUSIP No. [_]) with [Euroclear/Clearstream] (ISIN Code [_]) (Common Code [____]) through the Depositary by or on behalf of transferor as beneficial owner (the “Transferor”). The Transferor has requested an exchange or transfer of its interest in such Notes for an interest in the Rule 144A Global Note (CUSIP No. [_]).
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”) to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account or an account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
| | |
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers of such Notes.
| [Insert Name of Transferor] | |
| | |
| By: | |
| | Name: |
| | Title: |
Dated: ______________ __, ____
EXHIBIT E
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
Re:ECOLAB INC.
$[]
Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “Trustee”), and Ecolab Inc. (the “Company”), as supplemented by that certain Tenth Supplemental Indenture, dated as of August 18, 2021, by and between the Trustee and the Company (as so supplemented, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Notes held by you for our account are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes in transactions which did not require registration under the Securities Act of 1933, as amended (the “Securities Act”). As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the Securities Act.
As used herein, “U.S.” means the United States of America (including the States and the District of Columbia); and its territories and its “possessions” and other areas subject to its jurisdiction.
We undertake to advise you promptly in writing or via electronic communication on or prior to the date on which you intend to submit your certification relating to the Notes held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $__________ of such interest in the above Notes in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Notes (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
E-1
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Date: ____ __, ____3
By:
As, or as agent for, the beneficial owner(s) of the Notes to which this certificate relates.
| | | |
3 Not earlier than 15 days prior to the certification event to which the certification relates. | |||
E-2
Exhibit 4.4
$800,000,000
ECOLAB INC.
2.750% Notes Due 2055
REGISTRATION RIGHTS AGREEMENT
| August 18, 2021 |
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
BofA Securities, Inc.
1540 Broadway
New York, NY 10036
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation (the “Company”), proposes to (i) issue and sell to J.P. Morgan Securities LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Goldman Sachs & Co. LLC (collectively, the “Representatives”), as representatives of the several initial purchasers named in Schedule I to the Purchase Agreement (as defined below) (the “Initial Purchasers”), upon the terms set forth in the purchase agreement dated August 9, 2021, by and among the Company and the Representatives, acting as representatives of the Initial Purchasers (the “Purchase Agreement”), $300,000,000 aggregate principal amount of its 2.750% Notes Due 2055 (the “New Money Securities”) and (ii) offer (the “Exchange Offer”) the opportunity for eligible holders to exchange its issued and outstanding 4.800% Notes due 2030, 5.500% Notes due 2041, 3.700% Notes due 2046 and 3.950% Notes due 2047 for up to $500,000,000 aggregate principal amount of its 2.750% Notes due 2055 (the “Exchange Offer Securities” and, together with the New Money Securities, the “Initial Securities”) and cash (including cash in lieu of fractional New Money Securities), each in an amount described in the offering memorandum prepared in connection with the Exchange Offer. The Initial Securities will be issued pursuant to an indenture, dated as of January 12, 2015 (the “Base Indenture”), between the Company and Wells Fargo Bank, National Association (the “Trustee”), as amended by a
tenth supplemental indenture, to be dated the date of first issuance of the New Money Securities (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) between the Company and the Trustee. As an inducement to the Initial Purchasers and the dealer managers (the “Dealer Managers”) acting in connection with the Exchange Offer, the Company agrees with the Initial Purchasers and the Dealer Managers, for the benefit of the holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively the “Holders”), as follows:
The Company shall, at its own cost, prepare and file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the “Securities Act”), with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined below), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for (a) the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture and identical in all material respects to the applicable Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act. The Company shall use commercially reasonable efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act within 270 days (or if the 270th day is not a business day, the first business day thereafter) (the “Registered Exchange Offer Effectiveness Deadline”) after the date of original issue of the New Money Securities (the “Issue Date”) and shall keep the Exchange Offer Registration Statement effective for not less than 20 business days (or longer, if required by applicable law) including the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”).
If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not properly withdrawn in accordance with the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer and use commercially reasonable efforts to complete the Registered Exchange Offer not later than 360 days after the Issue Date (or if such 360th day is not a business day, the next succeeding business day) (the “Registered Exchange Offer Completion Deadline”), it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business, has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act.
The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Procedures for Tendering” (or other appropriate) section and the “Purpose of Exchange Offer” (or other appropriate) section, and (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period
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of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(i) below) and (ii) the Company shall use commercially reasonable efforts to make such prospectus, and any amendment or supplement thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds New Money Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “Private Exchange”) for such New Money Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to such New Money Securities (the “Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the “Securities.”
In connection with the Registered Exchange Offer, the Company shall:
| e) | otherwise comply with all applicable laws. |
As soon as reasonably practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
| y) | deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and |
Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Initial Securities being exchanged by such Holder, and any Exchange Securities received by such Holder, have been or will be acquired in the ordinary course of business, (ii) such Holder is not engaged and does not intend to engage in and will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a distribution of the Exchange Securities and (v) if such Holder is a
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broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
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Additional Interest (in addition to stated interest on the Securities) shall accrue on the Initial Securities over and above the interest set forth in the title of the Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, at a rate of 0.25% per annum. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease and the interest rate will revert to the applicable original rate. Any additional interest will be the exclusive remedy, monetary or otherwise, available to any Holder or affected New Notes with respect to any Registration Default. In no event shall the Company be obligated to pay Additional Interest for more than one Registration Default at any one time.
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J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Tel: (866) 834-4666
Email: JPM_LM@jpmorgan.com
Attention: Liability Management Desk
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Attention: IBCM Legal
Facsimile: (212) 325-4296
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Attention: Registration Department
Facsimile: (212) 902-9316
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Syndicate Registration
Facsimile: (646) 834-8133
BofA Securities, Inc.
1540 Broadway
New York, NY 10036
Attention: High Grade Transaction Management/Legal
Facsimile : (646) 855-5958
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: General Counsel
Facsimile: (646) 291-1469
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MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
Attention: Liability Management
Facsimile: (646) 434-3455
with a copy to:
Mayer Brown LLP
71 S. Wacker Drive
Chicago, Illinois 60606
Fax No.: (312) 701-7711
Attention: Edward S. Best
Ecolab Inc.
General Counsel
1 Ecolab Place
St. Paul, Minnesota 55102
Attn: Legal Department.
Facsimile: (651) 250-2573
Attention: General Counsel
with a copy to:
Jones Day
90 South Seventh Street, Suite 4950
Minneapolis, Minnesota 55402
Facsimile: (844) 345-3178
Attention: Bradley Brasser
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
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[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Initial Purchasers, the Dealer Managers and the Company in accordance with its terms.
| Very truly yours, | |
| ECOLAB INC. | |
| By: | /s/ Catherine Loh |
| | Name: Catherine Loh |
| | Title: Assistant Treasurer |
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[Signature Page to Registration Rights Agreement]
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written. | ||
J.P. Morgan Securities LLC | ||
By: | /s/ Som Bhattacharyya | |
| Name: Som Bhattacharyya | |
| Title: Executive Director | |
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CREDIT SUISSE SECURITIES (USA) LLC | ||
By: | /s/ Nevin Bhatia | |
| Name: Nevin Bhatia | |
| Title: Managing Director | |
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GOLDMAN SACHS & CO. LLC | ||
By: | /s/ David Shih | |
| Name: David Shih | |
| Title: Managing Director | |
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Barclays Capital Inc. | ||
By: | /s/ Meghan Maher | |
| Name: Meghan Maher | |
| Title: Managing Director | |
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BOFA SECURITIES, Inc. | ||
By: | /s/ Happy Hazelton | |
| Name: Happy Hazelton | |
| Title: Managing Director | |
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CITIGROUP GLOBAL MARKETS INC. | ||
By: | By: /s/ Brian D. Bednarski | |
| Name: Brian D. Bednarski | |
| Title: Managing Director | |
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MUFG SECURITIES AMERICAS Inc. | ||
By: | /s/ Thomas Reader | |
| Name: Thomas Reader | |
| Title: Managing Director | |
[Signature Page to Registration Rights Agreement]
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 90 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 90 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until __________________, all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will promptly send additional electronic copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the Holders of the Securities) other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S K will appear on the back cover page of the Exchange Offer prospectus. | ||
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
| Name: | | |
| Address: | | |
| | | |
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.